Re McCARTHY (LAND R FOLIO 60352)

JurisdictionIreland
JudgeMr. Justice McWilliam
Judgment Date27 July 1984
Neutral Citation1984 WJSC-CC 2463
Docket NumberFolio 60352
CourtCircuit Court
Date27 July 1984

1984 WJSC-CC 2463

LAND REGISTRY

County Cork

Folio 60352
In Re McCARTHY (LAND REG. FOLIO 60352)
Application of Christine McCarthy

Subject Headings:

REAL PROPERTY: incumbrance

1

Judgment delivered by Mr. Justice McWilliam on the 27th July 1984

2

This matter has come before the Court on a reference by the Registrar of Titles pursuant to section 19(2) of the Registration of Title Act, 1964, upon an application by Christine McCarthy, the registered owner, for the cancellation of a judgment mortgage registered on the folio on 22nd. July, 1983, the judgment creditor being John McCarthy, a brother-in-law of Christine McCarthy. The folio contains a note that the amount of the judgment was stated to be £79,058.60 and that, as between such burden and any lien on the property created by deposit of the Land Certificate prior to the date of the registration of the judgment mortgage, the judgment mortgage ranks in priority after such lien.

3

Christine McCarthy was married to Patrick, Gabriel McCarthy in England on 8th. September, 1973. Subsequently Patrick Gabriel and McCarthy purchased the land and was registered as full owner on the folio on 3rd February, 1975. The lands comprised about one and one third acres on which there was a dwellinghouse known as Eldon House. The husband and wife lived in the house with their two children and it became their family home.

4

Patrick Gabriel McCarthy became an alcoholic and was frequently a patient in St. John of God's hospital between 1980 and 1983.

5

In 1981 Christine McCarthy brought proceedings against her husband, and, on 19th February, 1982, an Order was made that she should continue to live in the family home and it was noted that her husband undertook to remain away from it. Various provisions were made as to custody and access and Patrick Gabriel McCarthy was ordered to pay maintenance at the rate of £150 per week.

6

On 3rd June, 1983, the husband and wife entered into a separation agreement whereby the wife agreed to support and maintain herself and the children and to abandon all her various statutory rights against her husband and he agreed to convey the house and premises to his wife. The wife also agreed, with the consent of the Court, to withdraw all proceedings whether for divorce a mensa et thoro or otherwise. Clause (m) of the agreement provided as follows: "Whereas and from the date hereof the wife irrevocably undertakes to pay and discharge all existing debts and liabilities together with all debts and liabilities incurred by her after the date hereof in respect of the said dwellinghouse, land and hereditaments attaching thereto and will at all future times indemnify and keep indemnified the Husband against all actions, proceedings, claims, demands, costs, damages, losses and expenses against all debts hereinafter contracted by her and against all liabilities whatsoever in respect of the issue of the said marriage and on any account of any matter."

7

On 17th. June, 1983, Patrick Gabriel McCarthy transferred the property to his wife in consideration of the settlement and she was registered as full owner on 19th. August, 1983. It appears from the application to the Land Registry for the registration of Christine McCarthy that the Land Certificate was furnished with the application. It was probably received by the Land Registry on 19th. August, 1983. It would appear also that no entry of the judgment mortgage was made on the land certificate at that time, although the land certificate was not produced for inspection in Court. In April, 1984, Christine McCarthy entered into a contract for the sale of the property and then discovered that the judgment mortgage had been registered on the folio in the previous July.

8

This led to the present application to the Land Registry for the cancellation of the entry of the judgment mortgage and, on notification of the application being given to John McCarthy, his solicitors formally object to the cancellation on the grounds that the transfer to Christine McCarthy was made in effort to defraud and defeat creditors and is therefore void.

9

The proceedings by John McCarthy against his brothers had taken an unusual course. They were brought against Patrick Gabriel...

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